Tealium Service Terms

Scope

These Tealium Subscription Terms and Conditions (the “Terms and Conditions”) form part of the Master Services Agreement (or “MSA”) by and between Tealium Inc., (“Tealium”) and Customer (as identified in the Service Order referencing these Terms and Conditions). These Terms and Conditions will apply to Customer’s use of the Services (as such terms are defined below) and to all Service Orders (as such term is defined below) that are entered into by Tealium and Customer. The specific Services that Customer is entitled to receive and the Service Term during which the Customer is entitled to receive such Services are all as identified in the Service Orders. To the extent there is any conflict or inconsistency between the terms of a Service Order and other terms of this MSA, the terms of the Service Order will control solely with respect to such conflict or inconsistency.

Definitions

“Additional Usage Fee” means the fee or fees identified on the applicable Service Orders that will apply if Customer’s use of the Services exceeds the Authorized Usage Level.

“Attribute” means a unique characteristic of a Visitor or a particular visit to Customer’s Authorized Domain that collects in the Tealium customer data platform. Examples of Attributes include visit duration, favorite product, active browser, badged visitor, exit URL, and date of purchase. Attribute limitations will be specified in the applicable Service Order.

“Authorized Usage Level” means the maximum number of Sessions or Events, or Attributes or other usage units (as specified on the applicable Service Order) that can be initiated using the Services without incurring an Additional Usage Fee.

“Code” means any and all HTML code and JavaScript that Tealium provides to Customer in conjunction with the Services. The Code will be deemed part of the Tealium Technology as such Technology is defined below.

“Confidential Information” means any information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within ten (10) business days of disclosure, reduced to writing and marked “confidential” and information which is not marked as “confidential” which should, under the circumstances, be understood to be confidential by a person exercising reasonable business judgment. Without limiting the foregoing, Tealium Technology will be deemed to be the Confidential Information of Tealium.

“Event” means any call made to Tealium’s data collection servers or any row of data uploaded to Tealium by or on behalf of Customer using Tealium’s omnichannel capability.

“Highly Sensitive Data” means personally identifiable information whose unauthorized disclosure or use could reasonably entail enhanced potential risk for a data subject, including but not limited to government issued identification numbers such as national insurance numbers, passport numbers, driver’s license numbers, or similar identifier, or credit or debit card numbers, medical information, and/or financial or medical account authentication data, such as passwords or PINs.

“Pages” means web or mobile pages on a Customer site or mobile application to which the Code has been added.

“Services” means any and all services, including use of the Code, purchased by Customer and provided by Tealium under this MSA in accordance with the Service Order(s).

“Service Order” means a service order, including any attachments attached thereto, signed by Tealium and Customer, which sets forth the Services to be provided by Tealium, the schedule, the payment terms, and other items covered by this MSA. The initial Service Order is the document to which these Terms and Conditions are attached. Subsequent Service Orders will incorporate these Terms and Conditions by reference.

“Session” means a discrete visit to an Authorized Domain by a Visitor where the Visitor does not leave the Authorized Domain and no more than thirty (30) minutes of inactivity between two (2) consecutive Visitor actions on the Authorized Domain occurs.

“Technology” means any proprietary technology, including internet design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, and documentation (both printed and electronic), know-how, trade secrets, and any related intellectual property rights throughout the world and any derivatives, improvements, enhancements, or extensions of such technology conceived, reduced to practice, or developed during the term of this MSA by the owner of such technology.

“Visitor” means an individual who accesses Pages on which the Services are implemented.

“Visitor Profile Term” means the trailing period of time in which Visitor must visit Pages in order to be included in a given set of Visitor Profile Data. If a specific Visitor Profile Term is not defined on a given Service Order, the applicable Visitor Profile Term will be defined to be the three (3) month period immediately preceding the time of measurement.

Services and Service Levels; Customer Assistance

Services and Service Levels. During each applicable Service Term (as such term may defined in one or more Service Orders executed by the Parties), Tealium will provide the Services to Customer. Each Service Order specifies an Authorized Usage Level. Customer will at all times ensure that either (a) its use of the Services does not exceed its Authorized Usage Level or (b) if its use of the Services exceeds the Authorized Usage Level, it will pay the Additional Usage Fee invoiced by Tealium according to the terms of the applicable Service Order and Section 4 below. During the Service Term, Customer is authorized to use the Services on all Authorized Domains in accordance with the MSA. Each Service Order will become part of this Agreement upon execution by the Parties. Tealium will use commercially reasonable efforts to provide the Services in substantial accordance with the service levels set forth in the service level MSA attached hereto as Attachment A (the “SLA”). Except as otherwise provided in this MSA, the remedies set forth in the SLA will be Tealium’s sole liability, and Customer’s sole and exclusive remedy, for any failure of Tealium to provide the Services in substantial accordance with the SLA.

Customer Assistance. If any job requires that any aspect of the Services, such as Code implementation, be performed on Customer’s premises, Customer will supply Tealium personnel with such information, resources, and assistance as Tealium may reasonably request. Customer acknowledges and agrees that Tealium’s ability to successfully provide the Services in a timely manner is contingent upon its timely receipt from Customer of such information, resources and assistance as may be reasonably requested by Tealium. Tealium will have no liability for failure to perform or deficiencies or delays in the Services resulting from the acts or omissions of Customer, its agents, or employees or performance of the Services in accordance with Customer’s instructions. Without limiting the foregoing, Customer acknowledges and agrees that if Tealium is unable to deploy all of the Services specified in the Service Order as a result of delay attributable to Customer, then all set-up fees specified in the Service Order will be deemed earned by Tealium and payable by Customer, notwithstanding such delay in deployment.

Payments

Customer will pay the fees in the amounts and at the times stated in each Service Order and further agrees to pay undisputed invoice(s) in full within thirty (30) days after receipt thereof. Any payment not received when due will accrue interest on the outstanding amount at the greater of: (a) a rate of four percent (4%) per annum above the base rate of the Bank of England from time to time; or (b) the rate as prescribed from time to time by the Late Payment of Commercial Debts (Interest) Act 1998, calculated on a daily basis. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer will pay the interest together with the overdue amount.
All sums payable under this MSA are exclusive of: (i) VAT or any relevant local sales taxes; (ii) income taxes assessed by any governmental agencies, including, but not limited to withholdings and royalties; or (ii) other taxes and similar fees imposed on the delivery of Services, (collectively “Taxes”). Customer will be responsible for the payment of all Taxes except for taxes on Tealium’s US income. Except as expressly set forth in this MSA, all fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided by Tealium.

Intellectual Property Ownership

Customer acknowledges that Tealium, or its licensors, own and will, at all times, retain all right, title and interest in and to: (a) all Technology that Tealium makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Services; and (b) all worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to the Tealium Technology. All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services will be owned by Tealium. Neither this MSA nor its performance transfers from Tealium to Customer any Tealium Technology. Neither this MSA nor its performance transfers from Customer to Tealium any Customer Technology, and all right, title, and interest in and to Customer Technology will remain solely with Customer. For the term of this MSA, Tealium grants Customer a limited, non-exclusive, non-transferable (with no right to sublicense) right and license to copy the Code only for insertion in Pages for use in connection with the Services. Tealium does not grant any other rights to the Code. Tealium reserves all rights not expressly granted under this MSA, and there are no implied rights granted by Tealium hereunder, whether by estoppel or otherwise.

Restrictions

Customer will not do or attempt to do, or permit any third party to do or attempt to do, any of the following: (a) make the Services, including its content or documentation, or any portion thereof available for use or access to or by any third party; (b) modify, reverse engineer, disassemble, decompile, reproduce or create derivative works from or in respect of the Services, Tealium Technology, the Services, or any component thereof; (c) use or access the Services or any part thereof in order to (i) develop a competitive or similar product or service or (ii) otherwise copy any ideas, features, functions or graphics of the Services, or the underlying software; (d) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Services or any information or materials therein; and (e) gain or provide unauthorized access to the Services or its related systems or networks. Customer will use the Services only for its own internal business operations, and not for the operation of a service bureau.

Confidentiality

Obligations. Each party agrees: that it will (a) hold the other party’s Confidential Information in confidence using the same standard of care as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; (b) not disclose the Confidential Information of the other to any third party without the other’s prior written consent, except as expressly permitted under this MSA; (c) limit access to the other’s Confidential Information to those of its employees, or agents having a need to know who are bound by confidentiality obligations at least as restrictive as those set forth herein; and (d) use the other party’s Confidential Information solely to perform its obligations or receive its benefits under this MSA. Notwithstanding the foregoing, either party may make disclosures as required or requested by a court of law or any governmental entity or agency, including but not limited to disclosures required by the Securities and Exchange Commission of the United States or any similar authority in any other country, provided that, to the extent permitted under applicable law, such party provides the other with reasonable prior notice to enable such party to seek confidential treatment of such information; and either party may disclose the terms and conditions of this MSA solely to potential investors, acquisition partners and its legal counsel and accountants in connection with a proposed financing or acquisition, provided that each such third party is bound by confidentiality obligations at least as restrictive as those set forth herein. The obligations set forth in this Section 7 will apply during the Term set forth in Section 10.1 and will continue for a period that will end five (5) years after the expiration or termination of this MSA.

Exclusions. The restrictions on the use and disclosure of Confidential Information will not apply to any Confidential Information, or portion thereof, which (a) is or becomes publicly known through no act or omission of the receiving party; (b) is lawfully received from a third party without restriction on disclosure; (c) is already known by the receiving party at the time it is disclosed by the disclosing party, as shown by the receiving party’s written records; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s written records. This Section 8 will not preclude a receiving party from using any of its general knowledge, skills and experience, as well as any ideas, concepts, know-how and techniques developed as part of its ordinary and customary business, provided such use is without reference to or use of the disclosing party’s Confidential Information.

Injunctive Relief. Each party acknowledges that a breach or threatened breach of this Section 7 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party will have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 7 by the other party or any of its employees or agents. Upon termination of this MSA, each party will promptly return or destroy all Confidential Information of the other party.

Warranties and Representations; Disclaimer

Warranties. Each party warrants that it has the right and power to enter into this MSA and an authorized representative has executed this MSA. Tealium warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards. Customer must notify Tealium of any warranty deficiencies within sixty (60) days after performance of the relevant Services in order to receive warranty remedies. Regarding any Services provided by Tealium that are advisory, no specific result is assured or warranted by Tealium.

Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 ABOVE, THE SERVICES ARE PROVIDED SOLELY ON AN “AS IS,” AND “AS AVAILABLE BASIS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TEALIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE; NONINFRINGEMENT; AND THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

Limitation of Liability

(a) EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4, NEITHER PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF THIS MSA OR ITS PERFORMANCE HEREUNDER, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, WILL EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO TEALIUM UNDER THIS MSA DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.
(b) NOTWITHSTANDING ANY PROVISION OF THIS MSA TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, DEPRECIATION OF STOCK PRICE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THE SERVICES, OR OTHERWISE UNDER THIS MSA, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
(C) NOTHING IN THIS MSA EXCLUDES LIABILITY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR THAT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; (iii) BREACH OF THE OBLIGATIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979 OR SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982; OR (iv) ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.

Term and Termination

Term. The term of this MSA (the “Term”) begins on the Effective Date and continues until the expiration of all the service terms of all Service Orders unless earlier terminated in accordance with this MSA.

Service Terms. Each Service Order will provide for a service term. At the end of the service term of any Service Order, unless either party gives written notice to the other party of its intention not to renew at least ninety (90) days before the end of a service term, the term of such Service Order will automatically renew for successive twelve (12) month periods. Termination of one Service Order will not affect the term of any other Service Order.

Termination for Breach or Insolvency. Either party may also terminate this MSA upon written notice to the other party, for any material breach by the other party if such breach is not cured within thirty (30) days following written notice of such breach from the non-breaching party. Upon termination by Customer for Tealium’s breach, Tealium will refund any unearned portion of prepaid usage fees. If Tealium terminates this MSA for Customer’s breach, Customer will pay any (a) outstanding balance for Services rendered through the date of termination and (b) other unpaid payment obligations due for the remainder of then current Service Term in the Service Order, which will be immediately due and payable in full. If Customer is late in paying fees that are due, Tealium may, without terminating this MSA, deny or otherwise suspend Services until Customer makes the overdue payments.

Effect of Termination. Upon expiration or termination of this MSA, Tealium will stop providing Services, all licenses granted by Tealium hereunder will terminate, Customer will cease all use of the Services, and Customer will remove all copies of Code from its Pages. Any payment obligations of Customer, and the provisions of Sections 2, 4, 5, 6, 7, 8.2, 9, 10.4, and Sections 11-22 inclusive will survive termination or expiration of this MSA.

Data Protection

Personal Data. Customer agrees that it will (a) use the Services in accordance with all applicable data protection laws and regulations, including without limitation the Data Protection Act 1998 (“DPA”); (b) if required by applicable laws and regulations, obtain the consent of the data subject before making any personal data as defined under the DPA (“Personal Data”) available to Tealium and maintain those consents throughout the Term; (c) not transmit to Tealium nor require Tealium to process any Highly Sensitive Data or any other data, the loss of which would trigger a data breach notification requirement or any health information, including without limitation individually identifiable health information; and (d) encrypt any Personal Data before transmitting such Personal Data to Tealium using secure industry standard protocols. Tealium and Customer acknowledge that Customer is the data controller and Tealium is the data processor in respect of any Personal Data transferred to Tealium by Customer. Tealium will process any such Personal Data only in accordance with Customer’s instructions from time to time and will not process such Personal Data for any other purpose. Following termination or expiration of this MSA, Tealium will destroy or return to Customer all Personal Data made available to Tealium by Customer, unless otherwise agreed in writing between the Parties. Customer acknowledges that Tealium is reliant on Customer for direction as to the extent to which Tealium is entitled to use and process the Personal Data transferred by Customer to Tealium. Consequently, Customer agrees to indemnify and keep indemnified and defend at its own expense Tealium against any and all loss, damage, cost and expense suffered by Tealium as a result of any claim brought by a data subject to whom such Personal Data relates which arises from any action or omission by Customer, to the extent that such action or omission resulted from Customer’s instructions (or lack thereof), and/or from Customer’s breach of any of its obligations under this Section 11. Tealium may authorise a third party (“Sub-Contractor”) to process any Personal Data transferred by Customer to Tealium, provided that the Sub-Contractor’s contract: (i) is on terms which are substantially the same as those set out in this MSA; and (ii) terminates automatically on termination of this MSA for any reason, unless otherwise agreed in writing between the Parties.

Security Practices. Tealium warrants that, having regard to the state of technological development and the cost of implementing any measures, it will: (a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected, and (b) take reasonable steps to ensure compliance with those measures.Tealium implements and maintains practices and procedures, which may be revised periodically, regarding the systems used to host and operate the Services. These practices and procedures are designed to reduce the vulnerability of Tealium’s systems to accidental loss, unlawful intrusions, unauthorized access, disclosure or alteration or wrongful conduct that may interfere with, misappropriate, or otherwise damage the Services.

Notices

All notices permitted or required under this MSA will be in writing, and will be deemed effective when: (a) delivered by personal delivery, (b) confirmed by the recipient, for notices delivered by electronic mail or facsimile transmission, or (c) three days after being sent by certified or registered mail (return receipt requested) or overnight courier. Notices will be sent to the addresses set forth in this MSA or such other address as either party may specify in writing.

Publicity

During the Term, Customer agrees that Tealium may refer to this MSA in a press release and use the Customer’s logo on its web site for the limited purpose of identifying Customer as a user of Services; provided that (a) Tealium will comply with any and all guidance Customer provides concerning such use of Customer’s logo and (b) Tealium will secure Customer’s prior written approval before using Customer’s logo in any other manner.

Law and Jurisdiction

If the country specified in the Customer Contact Information set forth on the Service Order is the same as a country set forth on Attachment B, both Parties agree to the application of the laws of that country without regard to conflict of law principles. Nothing in this MSA affects statutory rights of consumers that cannot be waived or limited by contract. Except as set forth above, this MSA and any dispute arising out of or in connection with it (including non-contractual disputes or claims) will be construed and enforced in accordance with English law. Except for any action for injunctive or other equitable relief (which may be brought at any time in any court of competent jurisdiction), the courts of England will have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this MSA or its subject matter or formation (including non-contractual disputes or claims). The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under this MSA.

Severability; Waiver

If any term or, provision of this MSA is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be construed to effectuate to the greatest possible extent the Parties’ expressed intent, and the remainder of this MSA will not be affected and will remain valid and enforceable. The failure of either party to exercise or enforce any right or provision of this MSA will not constitute a waiver of such right or provision, and any waiver granted by a party in one instance does not constitute a waiver for other instances.

Independent Contractors

The relationship between the Parties is solely that of independent contractors, and neither party will have any authority to bind or commit the other. Nothing in this MSA will be deemed or construed to create a joint venture, partnership, employment, or agency relationship between the Parties for any purpose.

Assignment

Neither this MSA nor any of the rights or duties arising out of this MSA may be assigned by Tealium or Customer without the prior written consent of the other party, such consent not to be unreasonably withheld; except that Tealium may, without such consent, assign this MSA and its rights and duties arising out of this MSA to the transferee, or other successor in interest, in connection with the sale or transfer of all or substantially all of its assets or in connection with any merger, acquisition, re-organization or consolidation. Any attempted assignment in violation of the foregoing will be void.

Headings.

The headings used for the sections of this MSA are for information purposes and convenience only and in no way define, limit, construe or describe the scope or extent of the sections.

Compliance With Applicable Law

It will be a condition of this MSA that, in pre-contract negotiations and in use of the Services granted under this MSA, each party has complied with and will at all times comply with its respective obligations under all applicable laws, enactments, orders and other governmental, statutory or regulatory requirements and guidance, including but not limited to applicable laws regarding bribery and corruption. Customer will comply with Tealium’s acceptable use policy attached hereto as Attachment C and made a part hereof.

Counterparts

This MSA may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute the one MSA.

Entire Agreement

This MSA constitutes the complete and entire agreement between the Parties with regard to the subject matter hereof, and supersedes and replaces any prior or contemporaneous agreements between the Parties regarding such subject matter. No oral or written representation that is not expressly contained in this MSA is binding on Tealium or Customer. No amendment to this MSA or any Service Order will be binding on either party unless in writing and signed by both Parties.

Term Construction

Unless the context otherwise requires:
(a) words in the singular will include the plural and vice versa;
(b) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(c) a reference to one gender will include a reference to the other genders; and
(d) any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase, or term preceding those terms.

In the case of conflict or ambiguity between any provision contained in the body of this MSA and any provision contained a Service Order, the provision in the Service Order will take precedence.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

References to Sections are to the Sections of this MSA.

Third Party Beneficiaries

This MSA does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties and a person who is not a party to this MSA will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this MSA.

Force Majeure

Neither party will be liable for any breach of the MSA, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, acts of civil or military authorities, or acts of God.

ATTACHMENT A
Service Level Agreement

This Service Level Agreement (“SLA”) applies to implementations of Services being hosted through Tealium’s content delivery network service provider (“Delivery Network”). The SLA applies to the uptime levels of the Delivery Network for the purpose of serving Tealium JavaScript files (“Libraries”).1. Service Commitment. Tealium, through its agreement with Delivery Network will use commercially reasonable efforts to make Delivery Network servers available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any month (the “Service Commitment”). In the event Delivery Network does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below.2. Definitions.
(a) “Monthly Uptime Percentage” means the percentage of available time within a given calendar month associated with Delivery Network serving of Libraries.
(b) “Monthly Subscription Amount” means the contracted amount for the Services for the Service Term, divided by the number of months in the Service Term (excluding fees for implementation, managed, and professional services and Additional Usage Fees).
(b) A “Service Credit” is a credit, calculated as set forth below, that Tealium may credit towards future invoices to Customer.3. Service Credits. Service Credits are calculated as a percentage of the Monthly Subscription Amount for the month in which the Service Commitment was not met in accordance with the schedule below. Tealium will apply any Service Credits only against future payments. If Customer has prepaid in full for all Services under the Agreement, Customer will be entitled to a refund of the Service Credit amount. Customer’s sole and exclusive remedy for any unavailability or non-performance of Delivery Network or other failure by Delivery Network to provide the Service Commitment is the receipt of a Service Credit in accordance with the terms of this SLA. Service Credits may not be transferred or applied to any other Customer account.

If the Monthly Uptime Percentage is less than 99.9% but equal to or greater than 99%, then the Service Credit will equal 10% of the Monthly Subscription Amount.

If the Monthly Uptime Percentage is less than 99%, then the Service Credit will equal 25% of the Monthly Subscription Amount.

4. Credit Request and Payment Procedures. To receive a Service Credit, Customer must submit a request by sending an e-mail message to services@tealium.com. To be eligible, the credit request must (a) include the list of Libraries that did not meet Service Commitment; (b) include, in the body of the e-mail, the dates and times of each incident that Customer claims to have experienced; (c) include Customer’s server request logs that document and corroborate Customer’s claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (d) be received by Tealium within ten (10) business days after the end of the month in which the errors occurred. If the Monthly Uptime Percentage applicable to the month of such request is confirmed by Tealium and is less than 99.9%, then Tealium will issue the Service Credit to Customer within ten (10) business days following the month in which the Service Commitment was not met.5. SLA Exclusions. The Service Commitment does not apply to any unavailability, suspension or termination of Customer’s account, or any other Delivery Network performance issues: (a) caused by factors outside of Tealium’s reasonable control, including any Force Majeure event or Internet access or related problems beyond the demarcation point of Delivery Network; (b) that result from any actions or inactions of Customer or any third party; (c) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Tealium’s direct control); or (d) arising from the suspension and termination of Customer’s right to use Delivery Network in accordance with the MSA.

ATTACHMENT B
Country Specific Terms

The following country specific terms amend or replace the terms they reference in the Tealium Subscription Terms and Conditions to which this document is attached (the “Terms and Conditions”). All provisions of the Terms and Conditions that are not amended or replaced pursuant to this Attachment B remain unmodified and in effect.

1. FRANCE

Section 4 is replaced in its entirety with the following:

4. Payments
Customer will pay the fees in the amounts and at the times stated in each Service Order and further agrees to pay undisputed invoice(s) in full within thirty (30) days after receipt thereof. In the event of a late payment by Customer, an interest rate equivalent to three (3) times the French legal rate of interest will be applied, and will be due on the day following the payment date on the invoice, pursuant to Article L. 441-6 of the French Commercial Code. In addition a lump sum penalty of forty (40) euros will be applied. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer will pay the interest together with the overdue amount. All sums payable under this MSA are exclusive of: (i) VAT or any relevant local sales taxes; (ii) income taxes assessed by any governmental agencies, including, but not limited to withholdings and royalties; or (ii) other taxes and similar fees imposed on the delivery of Services, (collectively “Taxes”). Customer will be responsible for the payment of all Taxes except for taxes on Tealium’s net income in the United States. Except as expressly set forth in this MSA, all fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided by Tealium.

Section 9 is replaced in its entirety with the following:

9. Limitation of Liability
(a) EXCEPT FOR: (1) LIABILITY ARISING FROM FAILURE TO PAY AMOUNTS DUE UNDER THIS MSA, (2) LIABILITY RESULTING FROM A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND (3) LIABILITY ARISING FROM A PARTY’S WILLFUL MISCONDUCT; NEITHER PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF THIS MSA OR ITS PERFORMANCE HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE, WILL EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO TEALIUM UNDER THIS MSA DURING THE SIX MONTHS PRECEDING THE CLAIM.

(b) NOTWITHSTANDING ANY PROVISION OF THIS MSA TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE FOR: (1) ANY LOSS OF DATA, (2) LOSS OF BUSINESS PROFITS, (3) DEPRECIATION OF STOCK PRICE, (4) BUSINESS INTERRUPTION, OR (5) ANY INDIRECT DAMAGES ARISING FROM OR RELATING TO THE SERVICES, OR OTHERWISE UNDER THIS MSA, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES TO THIS MSA.

(c) NOTHING IN THIS MSA EXCLUDES LIABILITY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR THAT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.

Section 10.3 is replaced in its entirety with the following:

10.3 Termination for Breach or Insolvency
Each party may terminate this MSA immediately if the other party breaches the confidentiality obligations of Section 8. Either party may also terminate this MSA upon written notice to the other party, for any material breach by the other party if such breach is not cured within thirty (30) days following written notice of such breach from the non-breaching party. If Customer is late in paying fees that are due, Tealium may, without terminating this MSA, deny or otherwise suspend Services until Customer makes the overdue payments. Either party may terminate this MSA immediately if: (a) an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the other party; (b) the other party ceases, or threatens to cease, to carry on business; or (c) the other party generally takes or suffers any similar action, application or proceeding to those listed in (a) – (b) above in any jurisdiction to which it is subject. Tealium may terminate this MSA on written notice to Customer if Customer breaches Section 11 of this MSA.

Section 11 is replaced in its entirety with the following:

11. Data Protection 11.1 Personal Data. Customer agrees that it will (a) use the Services in accordance with all applicable data protection laws and regulations, including without limitation the French Data Protection Act No.78-17 dated January 6, 1978 (“DPA”); (b) if required by applicable laws and regulations, obtain the consent of the data subject before making any personal data as defined under the DPA (“Personal Data”) available to Tealium and maintain those consents throughout the Term; (c) not transmit to Tealium nor require Tealium to process any Highly Sensitive Data or any other data, the loss of which would trigger a data breach notification requirement or any health information, including without limitation individually identifiable health information; and (d) encrypt any Personal Data before transmitting such Personal Data to Tealium using secure industry standard protocols. Tealium and Customer acknowledge that Customer is the data controller and Tealium is the data processor in respect of any Personal Data transferred to Tealium by Customer. Tealium will process any such Personal Data only in accordance with Customer’s instructions from time to time and will not process such Personal Data for any other purpose. Following termination or expiration of this MSA, Tealium will destroy or return to Customer all Personal Data made available to Tealium by Customer, unless otherwise agreed in writing between the Parties. Customer acknowledges that Tealium is reliant on Customer for direction as to the extent to which Tealium is entitled to use and process the Personal Data transferred by Customer to Tealium. Consequently, Customer agrees to indemnify and keep indemnified and defend at its own expense Tealium against any and all loss, damage, cost and expense suffered by Tealium as a result of any claim brought by a data subject to whom such Personal Data relates which arises from any action or omission by Customer, to the extent that such action or omission resulted from Customer’s instructions (or lack thereof), and/or from Customer’s breach of any of its obligations under this Section 11. Tealium may authorise a third party (“Sub-Contractor”) to process any Personal Data transferred by Customer to Tealium, provided that the Sub-Contractor’s contract: (i) is on terms which are substantially the same as those set out in this MSA; and (ii) terminates automatically on termination of this MSA for any reason, unless otherwise agreed in writing between the Parties.

11.2 Security Practices. Tealium warrants that, having regard to the state of technological development and the cost of implementing any measures, it will: (a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (i) prevent such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected, and (b) take reasonable steps to ensure compliance with those measures.

Tealium implements and maintains practices and procedures, which may be revised periodically, regarding the systems used to host and operate the Services. These practices and procedures are designed to reduce the vulnerability of Tealium’s systems to accidental loss, unlawful intrusions, unauthorized access, disclosure or alteration or wrongful conduct that may interfere with, misappropriate, or otherwise damage the Services. A description of the practices and procedures applicable to the Services, including applicable technical and operational measures, is available upon request. Customer is responsible for determining whether these practices and procedures are appropriate to meet Customer’s requirements. By using the Services, Customer acknowledges its acceptance of the Tealium practices and procedures and their adequacy for Customer’s purposes.

2. GERMANY

Section 1 is replaced in its entirety with the following:

1. Overview
These Tealium Subscription Terms and Conditions (hereinafter “Terms and Conditions”) form part of the MASTER SERVICES AGREEMENT (hereinafter, “MSA”) by and between Tealium Inc., (hereinafter “Tealium”) and Customer (as identified in the Service Order referencing these Terms and Conditions). Customer is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. These Terms and Conditions will apply to Customer’s use of Tealium’s Services and Code (as such terms are defined below) and to all Service Orders that are entered into by Tealium and Customer. Any Services that Customer is eligible to receive will be identified in one or more Service Orders (as such term is defined below). The specific Services that Customer is entitled to access and the Service Term Duration during which the Customer is entitled to access such Tealium Services are all as identified in the Service Orders.

Section 3.1 is replaced in its entirety with the following:

3.1 Services and Service Levels
During each applicable Service Term (as such term may defined in one or more Service Orders executed by the Parties), Tealium will provide the Services to Customer as a service according to the provisions of sec. 611 et seq. of the German Civil Code (“BGB”). Each Service Order specifies an Authorized Usage Level. Customer will at all times ensure that either (a) its use of the Services does not exceed its Authorized Usage Level or (b) if its use of the Services exceeds the Authorized Usage Level, it will pay the Additional Usage Fee invoiced by Tealium according to the terms of the applicable Service Order and Section 4 below. Subject to all terms, conditions, and restrictions of the MSA, during the Service Term, Customer is authorized to implement the Services on all Authorized Domains. Tealium will use commercially reasonable efforts to provide the Services in substantial accordance with the Service Levels set forth in the service level agreement attached hereto as Attachment A (hereinafter the “SLA”). Except as otherwise provided in this MSA and subject to conflicting statutory provisions, the remedies set forth in the SLA will be Tealium’s sole liability, and Customer’s sole and exclusive remedy, for any failure of Tealium to provide the Services in substantial accordance with the SLA.

Section 4 is replaced in its entirety with the following:

4. Payments
Fees are due upon the dates stated in the Service Orders. Customer will pay the fees in the amounts and at the times stated in each Service Order and further agrees to pay undisputed invoice(s) in full within thirty (30) days after receipt thereof. Any payment not received within this time limit (“Default of Payment”) will accrue interest on the outstanding amount of eight (8) percentage points above the basic rate of interest according to sec. 247 of the BGB. Such interest will accrue on a daily basis from the day the time limit expires until actual payment of the overdue amount, whether before or after judgment. Customer will pay the interest together with the overdue amount. All sums payable under this MSA are exclusive of: (i) VAT or any relevant local sales taxes; (ii) income taxes assessed by any governmental agencies, including, but not limited to withholdings and royalties; or (ii) other taxes and similar fees imposed on the delivery of Services, (collectively “Taxes”). Customer will be responsible for the payment of all Taxes except for taxes on Tealium’s net income in the United States. Except as expressly set forth in this MSA, all fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided by Tealium.

Section 6 is replaced in its entirety with the following:

6. Restrictions
Unless explicitly permitted under sec. 69d or sec. 69e of the German Copyright Act, Customer will not do or attempt to do, or permit any third party to do or attempt to do, any of the following: (a) make the Services, including its content or documentation, or any portion thereof available for use or access to or by any third party; (b) modify, reverse engineer, disassemble, decompile, reproduce or create derivative works from or in respect of the Services, Tealium Technology, or any Tealium product, or any component thereof (c) use or access the Services or any part thereof in order to (i) develop a competitive or similar product or service or (ii) otherwise copy any ideas, features, functions or graphics of the Services, or the underlying software; (d) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Services or any information or materials therein; and (e) gain or provide unauthorized access to the Services or its related systems or networks. Customer will use the Services only for its own internal business operations, and not for the operation of a service bureau or timesharing service.

Section 8.2 is replaced in its entirety with the following:

8.2 Warranty Disclaimer
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 ABOVE, THE SERVICES ARE PROVIDED SOLELY ON AN “AS IS,” AND “AS AVAILABLE BASIS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. FOR AVOIDANCE OF DOUBT: TEALIUM DOES NOT WARRANT: ( A) THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED, OR ERROR-FREE; OR (B) ANY SPECIFIC RESULT OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES HAVE NOT BEEN DEVELOPED TO MEET THE INDIVIDUAL REQUIREMENTS OF CUSTOMER. EXCEPT AS MAY BE EXPRESSLY PROVIDED ELSEWHERE IN THIS MSA, CUSTOMER USES THE SERVICES AT ITS OWN RISK. TEALIUM’S OBLIGATIONS AND WARRANTIES ARE ONLY FOR CUSTOMER’S BENEFIT AND NOT FOR ANY CUSTOMER OF CUSTOMER, OR ANY PARTNER OF CUSTOMER, AND ARE CONDITIONED ON CUSTOMER’S USE OF THE MOST RECENT VERSION OF THE SERVICES MADE AVAILABLE BY TEALIUM TO CUSTOMER.

Section 9 is replaced in its entirety with the following:

9. Limitation of Liability
(a) IN THE FOLLOWING EVENTS THE PARTIES WILL BE LIABLE TO THE FULL SCALE OF STATUTORY PROVISIONS: (1) LIABILITY ARISING FROM FAILURE TO PAY AMOUNTS DUE UNDER THIS MSA, (2) LIABILITY RESULTING FROM A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (3) LIABILITY ARISING FROM A PARTY’S WILLFUL MISCONDUCT, (4) LIABILITY UNDER THE PRODUCT LIABILITY ACT (PRODUKTHAFTUNGSGESETZ), AND (5) INJURY TO LIFE, HEALTH OR BODY: (b) NOTWITHSTANDING THE PROVISIONS IN SEC. (a) THE LIABILITY OF THE PARTIES WILL BE LIMITED AS FOLLOWS: IN THE CASE OF GROSS NEGLIGENCE THE PARTIES LIABILITY WILL BE LIMITED TO DAMAGES TYPICALLY FORESEEABLE AT THE DATE OF CONCLUSION OF THE MSA. THE AFOREMENTIONED LIMITATION WILL NOT APPLY IF DAMAGES HAVE BEEN CAUSED BY THE PARTY (I.E. LEGAL REPRESENTATIVES OF THE PARTY), BY EXECUTIVE MANAGEMENT STAFF OR PARTIES INVOLVED IN THE PERFORMANCE OF THE MSA BY THE PARTY OR RESULT FROM A SEVERE FAILURE TO SET UP OR SUPERVISE THE PARTY’S ORGANIZATION. THE LIMITATION WILL FURTHERMORE NOT APPLY IN CASE OF A GROSS NEGLIGENT BREACH OF ANY OBLIGATION UNDER THE MSA IF (i) THE FULFILLMENT OF SUCH OBLIGATION IS REQUIRED FOR THE EXECUTION AND PERFORMANCE OF THE MSA, (ii) THE VIOLATION COMPROMISES THE FULFILMENT OF THE PURPOSE OF THE MSA; AND (iii) THE CONTRACTUAL PARTNER USUALLY CAN RELY ON THE COMPLIANCE WITH SUCH OBLIGATIONS (“MATERIAL OBLIGATIONS”). IN CASE OF SLIGHT NEGLIGENCE THE PARTIES WILL ONLY BE LIABLE FOR THE VIOLATION OF MATERIAL OBLIGATIONS. IF A MATERIAL OBLIGATION IS VIOLATED THE LIABILITY IS LIMITED TO THOSE DAMAGES AND LOSSES TYPICALLY FORESEEABLE IN THE CONTEXT OF THE PROVISION OF THE SERVICES.

Section 10.3 is replaced in its entirety with the following:

10.3 Termination for Breach
Each party may terminate this MSA immediately if the other party breaches the confidentiality obligations of section 8. Either party may also terminate this MSA upon written notice to the other party, for any material breach by the other party if such breach is not cured within thirty (30) days following written notice of such breach from the non-breaching party. If Customer is in Default of Payment Tealium may, without terminating this MSA, deny or otherwise suspend Services until Customer makes the overdue payments. Either party may terminate this MSA immediately if: (a) there is a threat of insolvency with regard to the other party or (b) the other party ceases, or threatens to cease, to carry on business Tealium may terminate this MSA on written notice to Customer if Customer breaches Section 11 of this MSA. The aforementioned provisions will not affect the parties’ right to terminate this MSA for cause under sec. 626 BGB.

Section 11 is replaced in its entirety with the following:

11.1 Personal Data. Customer agrees that it will (a) use the Services in accordance with all applicable data protection laws and regulations, including without limitation the Bundesdatenschutzgesetz (“BDSG”); (b) if required by applicable laws and regulations, obtain the consent of the data subject before making any personal data as defined under the BDSG (“Personal Data”) available to Tealium and maintain those consents throughout the Term; (c) not transmit to Tealium nor require Tealium to process any Highly Sensitive Date or any other data, the loss of which would trigger a data breach notification requirement or any health information, including without limitation individually identifiable health information; and (d) encrypt any Personal Data before transmitting such Personal Data to Tealium using secure industry standard protocols. The consent requirement set forth in sub-section (b) above includes in particular obtaining valid consent for the transfer of Personal Data to the Tealium servers located in the US for the purposes of providing the Tealium Services. For the conduct related to these purposes, Tealium is credited in the US-EU Safe Harbor list of the Department of Commerce of the USA. Tealium and Customer acknowledge that Customer is the data controller and Tealium is the data processor in respect of any Personal Data transferred to Tealium by Customer during the Term of the MSA and for the purpose of providing the Tealium Services. Tealium will process any such Personal Data only in accordance with Customer’s instructions from time to time and will not process such Personal Data for any other purpose. Following termination or expiration of this MSA, Tealium will destroy or return to Customer all Personal Data made available to Tealium by Customer, unless otherwise agreed in writing between the Parties. Customer acknowledges that Tealium is reliant on Customer for direction as to the extent to which Tealium is entitled to use and process the Personal Data transferred by Customer to Tealium. Consequently, Customer agrees to indemnify and keep indemnified and defend at its own expense Tealium against any and all loss, damage, cost and expense suffered by Tealium as a result of any claim brought by a data subject to whom such Personal Data relates which arises from any action or omission by Customer, to the extent that such action or omission resulted from Customer’s instructions (or lack thereof), and/or from Customer’s breach of any of its obligations under this Section 11. Tealium may authorise a third party (“Sub-Contractor”) to process any Personal Data transferred by Customer to Tealium, provided that the Sub-Contractor’s contract: (i) is on terms which are substantially the same as those set out in this MSA; and (ii) terminates automatically on termination of this MSA for any reason, unless otherwise agreed in writing between the Parties.

11.2 Security Practices. Tealium warrants that, having regard to the state of technological development and the cost of implementing any measures, it will: (a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (i) prevent such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected, and (b) take reasonable steps to ensure compliance with those measures.
Tealium will deal with any incident that negatively impacts the interests of data subjects including unauthorized access to Personal Data in accordance with reasonable compliance measures which include (a) direct communication with the Customer on the issue, (b) agreement with Customer how to solve the issue, (c) implementation of an action plan and (d) agreement with Customer on remedial action, if required. These measures will not affect any obligation of the Customer under the BDSG.

Tealium implements and maintains practices and procedures, which may be revised periodically, regarding the systems used to host and operate the Services. These practices and procedures are designed to reduce the vulnerability of Tealium’s systems to accidental loss, unlawful intrusions, unauthorized access, disclosure or alteration or wrongful conduct that may interfere with, misappropriate, or otherwise damage the Services. A description of the practices and procedures applicable to the Services, including applicable technical and operational measures, is available upon request. Customer is responsible for determining whether these practices and procedures are appropriate to meet Customer’s requirements. By using the Services, Customer acknowledges its acceptance of the Tealium practices and procedures and their adequacy for Customer’s purposes.

Section 12 is replaced in its entirety with the following:

12. Notices
All notices permitted or required under this MSA will be in writing, and will be deemed effective when: (a) delivered by personal delivery, (b) confirmed by the recipient, for notices delivered by electronic mail or facsimile transmission, or (c) received by certified or registered mail (return receipt requested) or overnight courier. Notices will be sent to the addresses set forth in this MSA or such other address as either party may specify in writing.

Section 23 is replaced in its entirety with the following:

23. Third Party Beneficiaries
This MSA does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties and a person who is not a party to this MSA will not have any rights to enforce any term of this MSA.

Section 24 is replaced in its entirety with the following:

24. Force Majeure
Neither party will be liable for any breach of the MSA for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, acts of civil or military authorities, or acts of God.

3. SPAIN

Section 4 is replaced in its entirety with the following:

4. Payments
Customer will pay the fees in the amounts and at the times stated in each Service Order and further agrees to pay undisputed invoice(s) in full within thirty (30) days after receipt thereof. Any payment not received when due will accrue interest on the outstanding amount of eight percent (8%) per annum above the base rate applied by the European Central Bank in its main refinancing operation executed in the nearest day before the first day of the natural semester where this rule must apply. The amount of such rate will be established in accordance with the official publication by the Ministry of Economy and Finance in the State’s Official Bulletin (Boletín Oficial del Estado), as determined by article 7 of Law 3/2004 of December 28, on measures against delinquency in commercial operations. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer will pay the interest together with the overdue amount. All sums payable under this MSA are exclusive of: (i) VAT or any relevant local sales taxes; (ii) income taxes assessed by any governmental agencies, including, but not limited to withholdings and royalties; or (ii) other taxes and similar fees imposed on the delivery of Services, (collectively “Taxes”). Customer will be responsible for the payment of all Taxes except for taxes on Tealium’s net income in the United States. Except as expressly set forth in this MSA, all fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided by Tealium.

Section 11.1 is replaced in its entirety with the following:

11.1 Personal Data. Customer agrees that it will (a) use the Services in accordance with all applicable data protection laws and regulations, including without limitation the Ley Orgánica 15/1999, de 13 de diciembre, de Protección de Datos de Carácter Personal. (“LOPDCP”); (b) if required by applicable laws and regulations, obtain the consent of the data subject before making any personal data as defined under the LOPDCP (“Personal Data”) available to Tealium and maintain those consents throughout the Term; (c) not transmit to Tealium nor require Tealium to process any Highly Sensitive Data or any other data, the loss of which would trigger a data breach notification requirement or any health information, including without limitation individually identifiable health information; and (d) encrypt any Personal Data before transmitting such Personal Data to Tealium using secure industry standard protocols. Tealium and Customer acknowledge that Customer is the data controller (“responsable del fichero”) and Tealium is the data processor (“encargado del tratamiento”) in respect of any Personal Data transferred to Tealium by Customer. Tealium will process any such Personal Data only in accordance with Customer’s instructions from time to time and will not process such Personal Data for any other purpose. Following termination or expiration of this MSA, Tealium will destroy or return to Customer all Personal Data made available to Tealium by Customer, unless otherwise agreed in writing between the Parties. Customer acknowledges that Tealium is reliant on Customer for direction as to the extent to which Tealium is entitled to use and process the Personal Data transferred by Customer to Tealium. Consequently, Customer agrees to indemnify and keep indemnified and defend at its own expense Tealium against any and all loss, damage, cost and expense suffered by Tealium as a result of any claim brought by a data subject to whom such Personal Data relates which arises from any action or omission by Customer, to the extent that such action or omission resulted from Customer’s instructions (or lack thereof), and/or from Customer’s breach of any of its obligations under this Section 11. Tealium may authorise a third party (“Sub-Contractor”) to process any Personal Data transferred by Customer to Tealium, provided that the Sub-Contractor’s contract: (i) is on terms which are substantially the same as those set out in this MSA; and (ii) terminates automatically on termination of this MSA for any reason, unless otherwise agreed in writing between the Parties.

Section 12 is replaced in its entirety with the following:

12. Law and Jurisdiction
This MSA, and any dispute arising out of or in connection with it (including non-contractual disputes or claims) will be construed and enforced in accordance with Spanish law. Except for any action for injunctive or other equitable relief (which may be brought at any time in any court of competent jurisdiction), the courts of England will have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this MSA or its subject matter or formation (including non-contractual disputes or claims).

Section 23 is replaced in its entirety with the following:

23. Third Party Beneficiaries
This MSA does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties and a person who is not a party to this MSA will not have any rights to enforce any term of this MSA.

Section 24 is replaced in its entirety with the following:

24. Force Majeure

Neither party will be liable for any breach of the MSA, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, acts of civil or military authorities, or “fuerza mayor” (acts of God).

ATTACHMENT C

Tealium Acceptable Use Policy

Updated November 16, 2015

This Acceptable Use Policy (this “Policy“) describes prohibited uses of the web services offered by Tealium Inc. and its affiliates (the “Services“). The examples described in this Policy are not exhaustive. By using the Services, you agree to this Policy. If you violate the Policy or authorize or help others to do so, we may suspend or terminate your use of the Services.

No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include:

Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available illegal gambling sites or services or disseminating, promoting or facilitating child pornography.

Harmful or Fraudulent Activities. Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.

Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.

Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.

No Security Violations
You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System“). Prohibited activities include:

Unauthorized Access. Accessing or using any System without permission.

Interception. Monitoring of data or traffic on a System without permission.

No Network Abuse

You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:

Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.

Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.

Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.

No E-Mail or Other Message Abuse
You will not use any System to facilitate the distribution, publishing, or sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (e.g. “spam”), in violation of any law or regulation.

Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of the Services. We may:

Investigate violations of this Policy or misuse of the Services; or

Remove, disable access to, or modify any content or resource that violates this Policy or any other agreement we have with you for use of the Services.

We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.

Reporting of Violations of this Policy
If you become aware of any violation of this Policy, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. To report any violation of this Policy, please contact us at legal@tealium.com.

The Right Content

The Right Match

Utilizing a service to reveal what 3rd party services a visitor’s presumed company uses on their site. We then compare those against our own list of integrations, and if there are any matches, present those logos here.

The Right Market

Here we are using a reverse IP address lookup service to reveal a visitor’s industry. Then using that data point to relate to the visitor by powering personalized content.

The following are the options you could have been presented:

Not-Personalized

Healthcare

Retail

Financial

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